The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker;

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured;

Subsection 1(1.1) of the Act restricts the definition of “accident” by stating that the definition: “does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.”

If a claim is adjudicated as an accident under part (c) of the “accident” definition, it must satisfy the definition of “occupational disease” set out in subsection 1(1) as follows:

“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than as an acute reaction to a traumatic event.

WCB Policy 44.20.60 deals with claims involving psychological conditions. Policy 44.20.60 provides as follows:

1. Where information indicates a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident or its consequences shall be considered a personal injury by accident, for which compensation may be paid.

This includes, but is not limited to psychological conditions incurred as a result of the following:

(a) Organic brain damage from a traumatic compensable head injury.

(b) A psychological reaction or condition which is a direct result of a serious compensable life-threatening injury/event (serious in this context means an accident that threatens life or direct involvement in a life threatening incident or event).

(c) Psychosis resulting from exposure to harmful chemicals at the worksite.

(d) Psychosis resulting from the use of drugs used in the treatment of a compensable injury.

2. Accidents prior to January 1, 1992: Stress or psychological conditions said to be a result of a non-specific event or events and, therefore, cumulative in nature are considered to be chronic stress, and in the absence of a specific identifiable compensable event or events are to be adjudicated on the individual merits and circumstances of the case.

3. Accidents on or after January 1, 1992: Stress is not an occupational disease as defined under The Workers Compensation Act, except as an acute reaction to a traumatic event.

Worker’s Position:

The worker appeared at the hearing on his own behalf. The worker reviewed his written submission dated January 17, 2001 which outlined his position. The worker described the event which occurred at work which caused significant damage to one of the buildings and the stress he experienced in the time leading up to the collapse as he was responsible for the area and he could see the danger developing. It would appear that the worker had some difficulty in accessing information regarding the event, but the panel is satisfied that the event did indeed occur. The worker submitted that: "I have managed to show that there was indeed a life-threatening accident that happened at the (workplace). I have also shown that this life-threatening accident being in my area of responsibility caused a psychological condition in me that resulted in my doctor removing me from the workplace. In accordance with Worker's Compensation Board Policy 44.20.60, I believe that I have a legitimate claim with the Workers Compensation Board…."

Employer’s Position:

Legal counsel appeared on behalf of the employer at the hearing. It was submitted that the framework for entitlement in this case was that there had to be an injury by accident arising in and out of the course of employment. Focus was placed on the specific wording applicable to the "occupational disease" subcategory of accidents and the statutory criteria applicable to occupational disease, which acted to narrow the scope of the entitlement threshold. Reference was made to WCB Policy 44.20, Disease/General which provided direction on how to define certain terms contained in the occupational disease definition. It was submitted that the worker's case failed to meet the framework on multiple levels and it could not be said that the worker suffered an accident as per the definition of "occupational disease" under the Act. It was also submitted that a further barrier to entitlement on this claim was contained in section 1(1.1) of the Act, which excluded from the definition of "accident" any change in the employment of the worker, including promotion, transfer, demotion, layoff or termination.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the worker’s psychological condition was caused by an accident as defined in subsection 1(1) of the Act. On a balance of probabilities, we are not able to make that finding.

In the panel's opinion, the worker's psychological condition was caused by evolving and increasing job dissatisfaction and frustration he felt at work, as opposed to an event arising out of, and in the course of employment or an acute reaction to a traumatic event. While we agree that an event did occur at the workplace on March 12, 2007, we do not find that this event was the cause of the worker's psychological condition.

At the hearing, the worker described the circumstances surrounding his employment with the accident employer. He started working for the company in 2004 when he was recruited by the plant manager. The worker explained that he is an "idea man" and that he has a great aptitude for improving efficiencies in plants and saving his employer money. When he started with the accident employer, he made a presentation to management which proposed solutions to a number of problems the plant was facing. The worker had a good relationship with the plant manager and was told that the lines of authority would be changed so the worker would report directly to the plant manager. The worker was also promised to be given his own budget and authority over his department so that he could have the ability to implement some changes. Unfortunately, within a year after the worker started his employment, there was a change in management and a new plant manager was assigned. The worker's relationship with the new management was not good and there were a number of areas of conflict, arising largely from differing views on how to conduct operations and a lack of recognition of the worker's contributions. The worker admitted that he felt frustrated and like he had no control. The worker referred to one project which kept him excited about his work and he spent some time and effort in researching it. Although he had high hopes for this project, he later discovered "through the grapevine" that the project had been shelved and that there were no plans to proceed with it. This was a great disappointment to him, especially since in his former positions, his projects were always either implemented or he was told up front that they would not proceed. He had never before been in a situation where he put time and effort into a project and not been told that it was for no use.

With respect to the event which occurred on March 12, 2007, the worker's evidence was that modifications to a vent in his area of responsibility were made without any discussion with him. It soon became evident that the modification was flawed and caused ice to build up. Over the course of time, the ice built up to such a degree that it became a safety risk. The worker kept raising the issue at management meetings, but he was ignored. Plant workers demanded that he do something about the risk, but he had to tell them that he was doing everything he could. Finally, on March 12, 2007, the mass of ice finally collapsed and fell onto a roof, causing damage to the building.

The worker's position is that the falling ice and damage to the roof (which potentially could have had deadly consequences) was the cause of his psychological condition.

The panel notes, however, that the evidence indicates that the worker's symptoms of anxiety and difficulty with sleep commenced long before the March 12, 2007 incident. Further, the worker's evidence at the hearing was that his condition did not change much before and after the ice fell, and in fact, that initially, he felt thankful that the ice had finally collapsed. Overall, the panel does not find that the traumatic event itself caused the worker's psychological condition.

We are supported in our conclusion by the medical reports on file. In the psychiatrist's report of December 4, 2008, he states: "My impression is that this patient suffers from the affects of "burn out" related to the interpersonal stress at work. Although the DSM-IV term "Adjustment Disorder with mixed emotional features" is apt, the problem is not really a medical illness but rather a reaction to the workplace."